Chapter 2 - Provisions of the Bill
Introduction
2.1
The Crimes Legislation Amendment (Forensic
Procedures) Bill No 1 2006 (the Bill) seeks to amend the Crimes Act 1914 (the
Act) to ensure that inter-jurisdictional DNA profile matching,
using the National Criminal Investigation DNA Database (NCIDD), can be
implemented by all corresponding jurisdictions within Australia.[1]
2.2
In particular, the bill aims to resolve any
outstanding obstacles to the creation of a fully functional national DNA
profiling system. As shown in the background section below, most elements of
this system are now in place – including CrimTrac, the national agency to
administer the NCIDD. However, states and territories consider that current
legislation creates technical legal impediments such that 'States and
Territories cannot transfer DNA profiles from their DNA databases to the
Commonwealth.'[2] Similarly, the
Commonwealth cannot disclose its DNA profile information to the States and
Territories.'[3] The Bill
will amend the Crimes Act 1914 to
allow this to occur.
2.3
This chapter briefly sets out the background to
the bill; outlines its provisions, and deals with several issues that emerged
during the inquiry.
Background to the Bill
2.4
The bill amends Part 1D of the Crimes Act 1914, which was originally
added to the Crimes Act by the Crimes
Amendment (Forensic Procedures) Act 1998. Part 1D authorised forensic
procedures for the investigation of some Commonwealth offences, and included
the collection of fingerprints, blood samples and swabs, including those of
genital areas. Part 1D also provided for the storage, use and destruction of
the resulting material.
2.5
Part 1D had its genesis in a number of sources,
including the implementation of the recommendations of ALRC Report no 2
'Criminal Investigation';[4] the Fifth
Interim Report of the Review of Commonwealth Criminal Law (1991), and model
provisions developed by the Model Criminal Code Officers' Committee of the
Standing Committee of Attorneys General. The Crimes Amendment Forensic Procedures Bill 1997 was the subject of extensive
consultation and was also scrutinised by the Senate Legal and Constitutional
Legislation Committee.[5]
2.6
In 1998, the Federal Government provided $50m to
establish CrimTrac, a new national law enforcement support agency. CrimTrac[6] was designed to give police access to
information needed to solve crimes, with a national DNA database as a central
element. CrimTrac commenced operation in 2000.
2.7
CrimTrac's National Criminal Investigation DNA
Database (NCIDD) contains profiles from samples collected at crime scenes and
from convicted offenders.[7] The
intention was that each of the nine jurisdictions would enact legislation and
enter into Memoranda of Understanding (MOUs) with each other to permit the
sharing of information.[8]
2.8
Mr Ben
McDevitt, CEO of CrimTrac explained at the
Senate Budget Estimates hearings in May 2006 the operation of the NCIDD.[9]
2.9
The NCIDD system contains digital DNA profiles
which are supplied by the various police forces. The database contains no
identifying material for an individual; when a DNA sample (for example, of a
suspect) matches a DNA data profile that is stored on the database, the details
are sent to the police service which supplied the database material for
identification. Matching takes place in accordance with the legislation of the
state or territory which supplied the information.
2.10
Mr McDevitt explained that the system is used
'to differing extents' by each of the jurisdictions: some use it only for intrajurisdictional
matching: for example NSW, the Commonwealth, the ACT and Tasmania.
Others use it both for intrajurisdictional matching and interjurisdictional
matching: for example, the Northern Territory
and Queensland. There are
separate databases in each jurisdiction.
2.11
There are four conditions governing the jurisdictions'
ability to perform inter-jurisdictional matching:[10]
- both jurisdictions have to have an endorsed MOU
with CrimTrac;
- jurisdictions need to provide CrimTrac with the
relevant interjurisdictional matching table;
- their ability to commence interjurisdictional
matching via the NCIDD requires an endorsed bilateral agreement after which the
NCIDD must be notified that they are ready to commence matching;
- they need to have entered all of their data onto
the NCIDD.
2.12
Several jurisdictions have commenced interjurisdictional
matching: Queensland matches with
Western Australia, and also with
the Northern Territory; Western
Australia matches with the Northern
Territory.
Emerging difficulties in
implementation
2.13
Since its inception, various legal difficulties have
inhibited full participation in the database – and hence limited the benefits
available for the states and the Commonwealth. In 2001, Jonathan
D Mobbs of
CrimTrac observed in a paper presented at the 4th National Outlook
Symposium on Crime in Australia
that 'Unfortunately the extent of divergence under current laws is such that
the level of permissible DNA matching across jurisdictions is below optimum'.[11]
2.14
In 2003, the joint report of the Australian Law
Reform Commission and the Australian Health Ethics Committee (AHEC) and the
National Health and Medical Research Council (NHMRC) noted CrimTrac's advice
that inter-jurisdictional index matching would not occur until the agreements
via MOUs with the participating jurisdictions had been finalised.[12]
2.15
A review of Part 1D by Tom Sherman AO in 2003
identified 'the major deficiency ' in Part 1D. Observing that at that time
there was no operational national system, and that NSW was the only
jurisdiction to load profiles on to NCIDD, the Report called for 'redoubled
efforts on the part of the Commonwealth, the States and Territories to move
quickly to negotiate the relevant arrangements which are necessary to make the
system fully operational'.[13]
2.16
The Sherman Report conceded that the differing
arrangements in each jurisdiction reflected a diversity of views on 'the
balance between law enforcement requirements and civil liberties/privacy issues'.
However for a national database of the kind contemplated by the NCIDD a degree
of consistency higher than that which exists is essential if the resource is to
operate nationally.
2.17
In 2004, a report by the ANAO noted that
CrimTrac had faced 'significant challenges' in the implementation of the NCIDD,
and that 'Cross-jurisdictional DNA matching is yet to occur, because of
legislative and jurisdictional processes'.[14]
The basis for the system, the Model Code, has been departed from in varying
degrees in the jurisdictions. No single jurisdiction has adopted the Model Code
unchanged.
2.18
By the time the Senate Budget estimates hearings
took place in May 2006, the situation had evolved to the following extent:
- Queensland,
Western Australia and the
Commonwealth perceive no legal impediment to functioning of the NCIDD.
- NSW and South Australia
are developing legislative amendments to address the outstanding issues.
- Victoria
still needs to develop legislation to address the perceived legal barriers to
exchanging DNA data on a national level.
- Tasmania
is considering the changes required.
- The Northern Territory
is not at present considered to be a jurisdiction that can use NCIDD because
its laws appear to operate in quite a different way from those of the
Commonwealth.[15]
2.19
In the context of this history, the current bill
constitutes a further development in the long evolution of the NCIDD scheme,
which is still to be fully implemented.
Provisions of the Bill
2.20
Item 1 of Schedule 1 replaces the existing
simplified outline for Part 1D and inserts a new simplified outline that refers
to the Commonwealth DNA database system and state and territory database
systems. The revised Part 1D enables those database systems to be integrated
and for information contained in them to be exchanged and protected.[16]
2.21
Item 7 of the bill is an amendment to allow
prison officers to be present while a forensic procedure is carried out on a
suspect (subject to the relevant state or territory law). This is designed to
provide safety for those carrying out the procedure.
2.22
Items 2 and 14 (referring to existing section
23YDAC of the Crimes Act) define ‘DNA database system’ as a database containing
specified indexes of DNA profiles relating to material taken or obtained by a
Commonwealth agency. The indices include a crime scene index, missing persons
index, unknown deceased persons index, serious offenders index, volunteers
indexes, suspects index, statistical index and any other prescribed index.[17]
2.23
Item 3 repeals the definition of ‘DNA database
system.’ A number of amendments then define and distinguish the Commonwealth
DNA database system, state and territory database systems and the National Criminal
Investigation DNA Database.
2.24
A number of items in the bill (for example,
items 5, 6, 8-12, 15, 19, 21, 22, 24, 27, 30-33, 35, 40 and 46)[18] clarify that the DNA database referred
to is the Commonwealth DNA database. The Bills Digest explains that this
ensures that the regulatory and offence regimes in Part 1D of the Crimes Act
apply to the Commonwealth database system, leaving the states and territories
to regulate activities associated with their own DNA database systems.[19]
2.25
Items 16 and 17 also provide clarification and
definition, by identifying the National Criminal Investigation DNA Database as 'the
database known by that name that is managed by the Commonwealth. The database
is also referred to as "NCIDD"'.[20]
2.26
A 'State/Territory DNA database system' is
defined in item 18 of the bill. The Bill
Digest explains the provision as follows: '...such
a database is held by or on behalf of a participating jurisdiction for the
purposes of a ‘corresponding law’. The definition of a ‘corresponding law’ may
be found in existing section 23YUA of the Crimes Act: a law that relates to the
carrying out of forensic procedures and DNA databases and which is either
substantially in compliance with Part 1D or which is prescribed by regulation.[21]
2.27
A new section – 23YDACA – of the Crimes Act is proposed
by item 20 of the bill. The Explanatory Memorandum indicates that the section
supports 'the national character of NCIDD and will allow inter-jurisdictional
matching of DNA profiles'.[22] The
section provides that:
- the NCIDD consists of the whole or the part of
the Commonwealth DNA database and the whole or the part of the various state/territory
DNA databases;
- the various Commonwealth, state and territory
portions of NCIDD retain their individual character;
- the State/Territory portions of NCIDD may be
accessed by state/territory officials, such as, Privacy Commissioners and
Ombudsmen and others with audit-like functions, in accordance with the relevant
state/territory laws.
2.28
Misuse of the information in the Commonwealth
DNA database system or in the NCIDD is covered by item 22, which clarifies that
it is a Commonwealth offence, punishable by up to 2 years imprisonment.[23]
2.29
As noted in the Bills Digest, 'other amendments
reflect changes in terminology where appropriate'. The amendments include:
- Replacing the expression ‘stored on the DNA
database system’ with the expression, ‘stored on the Commonwealth DNA database
system or NCIDD’ to clarify that information on the Commonwealth DNA database
system or on the NCIDD can be accessed for administrative purposes, under
Commonwealth law, and under arrangements entered into between the Commonwealth
and the States/Territories (items 23 and 36).
- Replacing the expression ‘a DNA database system’
with ‘the Commonwealth DNA database system or NCIDD’ to provide that
unauthorised disclosure of information on the Commonwealth DNA database or on
the NCIDD (which is managed by the Commonwealth) is a Commonwealth offence
(items 35, 36 and 44). State and territory laws will govern offences related to
state/territory DNA database systems.
- Replacing the phrase ‘DNA database system’ with
the phrase ‘Commonwealth DNA database system or a state/territory DNA database
system’ to clarify that these systems can be accessed under arrangements
entered into by the Commonwealth and a state/territory (items 26, 39, 45 and
47).
- Replacing the phrase ‘DNA database system of the
participating jurisdiction’ with the phrase ‘the state/territory DNA database
of the participating jurisdiction’ in order to reflect new terminology (for
example, item 41).[24]
2.30
Item 42 of the bill authorises CrimTrac to enter
into arrangements on behalf of the Commonwealth.
2.31
Items 28 and 29 correct drafting errors in two
tables which appear in the Act.
Issues
2.32
As noted in the introduction, the principal purpose
of the Bill is to resolve remaining doubts as to
the legal status of the NCIDD, and the ownership of the data. The key question
for the committee therefore, is whether the Bill
is successful in this undertaking.
Legal status of the National
Criminal Investigation DNA Database
2.33
In his evidence to the Budget Estimates committee,
Mr McDevitt explained that one of the major issues is the legal status of the
NCIDD: 'The question is: is NCIDD itself a Commonwealth database or is it at
law recognised as an amalgam of a whole set of jurisdictional databases?'[25] The proposed legislation is intended
to finalise the latter position.
2.34
This was also noted by Senator Abetz
in his second reading speech, when he explained that the states and territories
held two major concerns about the legislation as it stands:
- it is unclear if DNA profiles from state
databases can lawfully be transferred to the Commonwealth; and
- it is unclear that the Commonwealth can disclose
DNA information it holds to the states and territories.
2.35
He indicated that these concerns were not shared
by the Commonwealth but the bill will clarify for the state and territories,
that the transfer of information to enable inter-jurisdictional DNA matching is
lawful.[26] The Minister for Justice
and Customs also stated that from the Commonwealth's perspective, the
legislation is not necessary at all, but 'in the interests of moving it along',
the Commonwealth was ready to go down that path.[27]
2.36
The committee has no reason to doubt that the bill
will achieve its intended effect. The Bill
itself stems from consultation with the states, and the states have not raised
any concerns on this issue in the context of this inquiry.
Data
2.37
The second issue focuses on the ownership access
and storage of NCIDD.
2.38
In her submission to the inquiry, Chief
Commissioner Nixon of the Victoria Police generally supported the bill, but was
concerned that the ownership of the NCIDD, and therefore of the information on
the database, is not clear.
2.39
The committee notes that item 20 of schedule 1 to
the bill inserts a new section, 23YDACA, into the Act. The section sets out the
constituent parts of the NCIDD, which include:
- the whole or the part of the Commonwealth DNA
database and
- the whole or the part of the various state/territory
DNA databases.
2.40
The Explanatory Memorandum indicates that the various
Commonwealth, state and territory portions of NCIDD 'retain their individual
character, and the State/Territory portions of NCIDD may be accessed by state/territory
officials, such as, but not only, Privacy Commissioners and Ombudsmen and
others with audit-like functions, in accordance with the relevant state/territory
laws'.[28]
2.41
In the committee's view, it is clear from this provision
that the separate state, territory and Commonwealth databases that constitute
the NCIDD remain separate entities and the ownership and control of the
information remains with those jurisdictions. This is also reflected in the
practical arrangements for inter-jurisdictional data matching, which requires
the release of identity information from the home state database rather than
NCIDD. The committee is confident that this issue is adequately addressed by
the legislation.
2.42
The Privacy Commissioner of New South Wales also
drew the committee's attention to the aspect of item 20 of the bill, which provides
for access to the data for the purposes of conducting an audit by, but not only
by, Privacy Commissioners, Ombudsmen and others with audit like functions, in
accordance with the relevant State/Territory laws.[29] Proposed subsection 23YDACA(2) states:
(2) For the purposes of conducting an audit, a participating
jurisdiction, or an authority of a participating jurisdiction, may access NCIDD
to the extent that it consists of:
(a) the whole or
a part of the State/Territory DNA database system of the participating jurisdiction; or
(b) information
obtained from the State/Territory DNA database system
of the participating jurisdiction.
2.43
The Commissioner states that its difficulty with
the provision is that many state agencies having normal and legitimate
oversight and enforcement functions will not be using the database for 'audit'
but for other purposes such as investigation. The examples cited include the (NSW)
Independent Commission Against Corruption (ICAC), the Ombudsman, and the Police
Integrity Commission (PIC). This appears to limit the exercise of the states'
powers.
2.44
The committee agrees with the Privacy Commissioner
of NSW that the word 'audit' in this context seems inappropriately restrictive,
and could act to limit access for agencies with a legitimate need to use the
database. Accordingly the committee makes the following recommendation:
Recommendation 1
2.45
The committee recommends that Item 20 (proposed new
subsection YDACA(2)) be amended to clarify the access rights for investigating
agencies to the NCIDD.
Other issues: storage of data and
procedural requirements
2.46
While not directly related to the provisions of
the bill, Senator Ludwig sought
information concerning the storage and destruction regime for forensic data.
2.47
The committee was advised by the Attorney
General's Department[30] that
subsection 23YD(3) of the Commonwealth Crimes
Act 1914 governs the destruction of forensic material. Briefly, where no
proceedings have been instituted after 12 months have elapsed and there are no
proceedings on foot, the forensic material must be destroyed after 12 months.
Where a person is convicted without the conviction being recorded, or is
acquitted, and there is no appeal, the material must be destroyed as soon as
practicable. The section also provides for an extension of time in certain
circumstances.
2.48
The Department also advised the committee that
the position is similar with minor variations in all jurisdictions, with the
exception of the Northern Territory,
where the material may be retained at the Police Commissioner's discretion.
2.49
Overall, by carefully differentiating between
the NCIDD, a Commonwealth DNA database, and state and territory DNA, the regime
has clear requirements for the disposal of material on the databases. Material
on the NCIDD database is not identified (see above) except through the state
which supplies it. When the state destroys information, any record left on the
NCIDD database would be meaningless. Accordingly the states have control over
the material which they contribute, and may deal with it according to their
state laws.
Conclusion
2.50
The committee concurs with the purposes of the
bill and considers that the provisions of the bill will successfully resolve
any lingering legal impediments to the transfer of information to and from the
NCIDD. The bill is careful to define and delineate the DNA database systems and
the arrangements for sharing information.
2.51
The committee notes and endorses the comments of
the Chief Commissioner of the Victoria
Police, who states in her submission that
information sharing between police and jurisdictions is dependent upon
complementary legislation being enacted by the states.[31] This was reinforced by the Attorney
General's Department which said:
If the States and Territories do not commit fully to NCIDD then Australia
will not have national DNA profile matching, and it is entirely conceivable
that suspects detained in one jurisdiction might not face questioning regarding
their DNA being recovered from crime scenes in other jurisdictions.[32]
2.52
Five years have elapsed since the NCIDD was
established, and as late as October 2005, the participation rate remained
limited. These amendments will assist in clarifying the Commonwealth's role and
its responsibilities, but unless the states and territories follow quickly, the
effectiveness of the national database will be limited.
Recommendation 2
2.53
Subject to the technical recommendation above, the
committee recommends that the bill be passed.
Senator Marise Payne
Committee Chair
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